FORUM: COMMENT

Legal Theory and Practice in Eleventh-Century Italy

Charles M. Radding

As I understand it, Susan Reynolds's article is meant to address the long-standing habit among legal historians of equating professional approaches to the law with the emergence of a school-based study of Roman law.1 In the course of the twelfth century, she argues, legal practitioners developed their own kinds of expertise that, though less bookish, might have had a practical significance equal to, if not greater than, the learning produced in the schools. Although these observations seem on the mark for Europe north of the Alps, Reynolds errs, I think, in assimilating Italy to this chronological and conceptual schema. Already by the ninth and tenth centuries, there existed in northern Italy a corps of royal notaries and judges who possessed both literacy and legal expertise unparalleled elsewhere in Europe. Distinguished from other laymen by their titles, learning, and even their handwriting, the legal experts already appear to have met the criteria of professionalism generally proposed for the late twelfth century in the rest of Europe.2	1
But it is not my purpose here to enter into arguments about definition. Rather, I develop a critique of Reynolds's position that operates at two levels. The first is that of chronology. It is easy to show—indeed, it is well understood—that the legal profession in Italy began to undergo a further transformation of learning by the middle of the eleventh century, or perhaps a hundred years earlier than the examples Reynolds herself cites. My second criticism concerns evidence, for Reynolds seems to suppose that documents provide the only significant evidence for understanding practical expertise. Yet the boundaries between legal practice and legal education are less hermetically sealed than Reynolds seems to assume, and expertise in courts and documents in eleventh-century Italy very quickly found expression in the form of commentaries on laws and legal practice. One would not exclude Glanvill from an assessment of English legal expertise in the late twelfth century, but that, in effect, is what she has done for eleventh-century Italy. These omissions, in fact, are particularly regrettable, since eleventh-century Italy offers one of the best—and best documented—examples of how practical legal experience can result in a high level of legal expertise: precisely the general point she is trying to argue.	2
Since space does not permit a complete exposition of these themes, I concentrate here on one particular piece of evidence, a commentary on the collection of Lombard, Frankish, and Saxon laws known then as the Liber Legis Langobardorum and to historians as the Liber Papiensis. The compilation itself apparently dates to the eleventh century, or perhaps a little before. It was obviously produced by legal experts for their own use, because the Frankish and Saxon legislation included represents a selection of laws in force in Italy rather than a mechanical collection of capitularies in their original form. The Liber Papiensis is, indeed, something of a misnomer if we take it to mean a text whose contents were fixed once and for all, for most manuscripts contain additional laws beyond the core compilation that they all share. It was a text in constant evolution.	3
The commentary itself, which is known as the Walcausina, survives in two almost identical manuscripts: Paris, Bibliothèque nat., lat. 9656 and Vienna, Nationalbibliothek 471, both from the second half of the eleventh century. That the Walcausina was written about Lombard law might be enough to show that this commentary originated with legal practitioners and was directed toward them, but there are other indications that lead to the same conclusion. The name Walcausina comes from verses in three of the manuscripts that attribute the glosses and edition of the laws to a Walcausus or Gualcausus, a judge whose career in Pavia and elsewhere can be traced through documents from the 1050s to the end of the 1070s. If it were not enough that the commentary was written by a legal practitioner, probably including elements originating from discussions among the most eminent of the judges, a further link comes from the manuscripts themselves, because one of the scribes who participated in copying them can be identified as a certain Johannes notarius sacri palatii who prepared a document in 1070 in Pavia. Both the author and at least one (and possibly more) of the copyists were thus legal professionals, and the broad popularity of the commentary—presumably among legal professionals—is attested by the appearance of much of its content in the Florence and London manuscripts of the Liber Papiensis.3	4
Much of the content of the commentary is practical. For example, many laws are provided with hypothetical illustrations in direct speech of how pleading using that law might proceed. These model pleas are often very simple, essentially giving a formulation of the words used to make an accusation in court. Thus, for Rothar 338: "Peter, Martin accuses you of having cut off the tail of his horse." Or, for Rothar 215: "Peter, Martin appeals against you, that he married Mary your mundoald and gave her 100 solidi as a wedding gift, and she has died, and the law orders that he should receive back what he gave." But they could also be much more complicated than that. The example for Rothar 9 begins with the accusation but continues to discuss possible pleas:	5
"Peter, our lord the emperor, or Paul advocate of the pars publica, says this, that you conspired or thought against his life or the life of the king, or dared flee out of the province, or invited or introduced enemies of the king into the province, or [various other offenses]." "I did not do it." If the accuser is not present, let him prove his innocence by oath with, some would say, his oath-helpers; and if he is present, let the accused defend himself in combat; thus however, that when he swears the advocate not swear before. This by custom. But according to better opinions, he alone should swear.
The audience for these glosses is, apparently, the jurists who preside at court. The accusation is not spoken by the accuser himself, whom these pleas refer to in the third person, but apparently by a member of the court. Still more significant, here and elsewhere, is the attention to the mode of proof to be applied. Not only was this one of the most important decisions the court would have to make, but the laws themselves are often silent on this point. And the definition of proof, as this example shows, could be complex, varying according to the defense offered. Because the Walcausina discusses procedure in such detail, and deals with kinds of issues not well represented, or represented at all, in documentation, it constitutes a remarkable (if understudied) source for how courts actually worked. It also provides a precise parallel to the interest in procedure that, as Reynolds notes, was typical of late twelfth-century English legal learning.	6
The model pleas are just one aspect of the Walcausina that seems intended for practical use. Another, very odd-seeming method was to insert additional words into the text of a law to clarify its meaning or to adapt it according to later legislation. (The insertions were marked with dots above the line, with marginal glosses providing references to the law whose authority justified the explanatory phrase—all this, of course, made for manuscripts that must have been exacting to copy.) But unusual as these devices may appear to us, the author or authors judged their readership correctly. The Paris manuscript, in particular, bears the marks of intense use and even contains an early twelfth-century reader's awkwardly written notations in Italian: not then a written language.	7
These features reveal legal professionals from the 1060s or 1070s who, while still actively engaged with legal practice, had already made the transition from knowing the law to reflecting on it, abstracting it, and seeing the interplay between legal practice and legal text and between different legal texts. A final element shows where this was already heading. In addition to the mastery of Lombard law, which was only to be expected, the Walcausina also permits us to catch glimpses of how this juristic community was extending its reach to Roman law, and specifically to the Corpus Iuris Civilis. All four works are cited: the Institutes and Digest twice, the Novels (in the form of the Epitome Juliani) three times, and the Code eight times. These citations had the practical intent of explaining Lombard law where it was insufficiently explicit; they were not, and did not pretend to be, an exposition of Roman law for its own sake. But what makes them particularly interesting is that these references are among the very earliest citations of the Code and Digest anywhere. (The impression that the Code was known in the early Middle Ages was based on the misdating of a manuscript of excerpts from the Code to the tenth century; in fact, paleographers now agree in dating it to the middle or third quarter of the eleventh century—the very period when the Walcausina was compiled.) What we have, in short, is a case of practical law leading to the study of Roman law, whose principles were then applied back to the world of practice.4	8
The Walcausina is not an isolated instance of legal practice and theory being combined in northern Italy in the second half of the eleventh century. To begin with, the Walcausina is not unique. In fact, it is less ambitious in many respects, and certainly less well known, than the contemporary commentary known as the Expositio to the Liber Papiensis. This is also the period when, suddenly, one begins to find evidence for the circulation of Justinian's works: the earliest manuscripts and glosses of the Code, the earliest glosses to the Institutes, as well as the first citations in legal documents of Justinian's Code (1057) and Digest (1076), and—from 1047—the first citation of the Code in an imperial constitution. This constitution, moreover, specifically mentions that the emperor's attention had been sought by "some legal experts." Finally, there was increased experimentation with the language employed in documents, some of these also reflecting study of Roman law.5	9
An obvious conclusion to be drawn from this evidence is that the combination of practical skill and learning that Reynolds documents for the second quarter of the twelfth century had already been part of the mix in northern Italy for nearly a century. In addition, while she seems to see learning filtering down from the schools to practice, the situation in the eleventh century permits us to glimpse a process by which legal practice led to a more formal "bookish" learning that in turn found its audience among legal professionals. The movement of legal expertise from one legal arena to another—in this case from Lombard to Roman and back—is instructive about the portability of legal learning in the Middle Ages and suggests the complexity of exchanges that may have been occurring outside of Italy in the later twelfth century. Finally, one might be reminded of how unclear is the situation of legal learning in Italy in the first half of the twelfth century. This was not only the period of Bologna; indeed, it is well to remember that how much we think we know about Bologna before 1150 depends on quasi-legendary or folkloric accounts from the later twelfth and thirteenth century. But there must also have existed various mixes of practical and Romanist learning. The learned Milanese judges studied by Peter Classen provide one example.6 Another may be the Libri Feudorum, about which Susan Reynolds has taught us so much, that seem to emerge in Italy in the early twelfth century and certainly constituted a significant instance of theorizing about practical law. Here, too, there is work to be done in which it will be necessary to reckon with both books and documents.	10
Charles M. Radding is a professor of history at Michigan State University <radding@msu.edu.>   Notes 1. See Susan Reynolds, "The Emergence of Professional Law in the Long Twelfth Century," Law and History Review 21 (Summer 2003), 347–66. 2. C. M. Radding, The Origins of Medieval Jurisprudence (New Haven: Yale University Press, 1988); François Bougard, La Justice dans le royaume d'Italie de la fin du VIIIe siècle au début du XIe siècle (Rome: École français de Rome, 1995); Armando Petrucci and Carlo Romeo, "Scrivere 'In Iudicio': Modi, soggetti e funzioni di scrittura nei placiti del 'Regnum Italiae' (secc. IX–XI)," Scrittura e civiltà 13 (1989): 5–48, pls. 1–15. 3. The text of the Liber Papiensis, including the Walcausina and the Expositio (mentioned below), can be found in MGH Leges IV (Weimar, 1868); see also C. M. Radding, "Petre te appellat Martinus. Eleventh-Century Judicial Procedure As Seen through the Glosses of Walcausus," in La Giustizia nell'Alto medioevo II (secoli IX–XI), XLIVa Settimana di Studio sull'Alto Medioevo, Spoleto, 11–17 aprile 1996 (Spoleto, 1997): 827–61. 4. On the manuscripts of Justinian's Corpus, see C. M. Radding, "The Corpus Iuris Civilis in the Middle Ages: A Case Study in Historiography and Medieval History," (with Antonio Ciaralli, Dept. of Paleography, University of Verona) Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung 117 (2000): 274–310; on Pistoia 106, mistakenly dated, in the nineteenth century, to the tenth century, with consequent distortion of the history of the Code, see Antonio Ciaralli, "Ancora sul manoscritto pistoiese del Codex (Arch. Cap. C 106). Note paleografiche e codicologiche," Scrittura e Civiltà 24 (2000): 173–226. 5. Antonio Padoa Schioppa, "La cultura giuridica," in Storia di Pavia 2 (Milan, 1987): 219–35, and "Il ruolo della cultura giuridica in alcuni atti giudiziari italiani dei secoli XI e XII," Nuova Rivista Storica 64 (1980): 265–89; also published as "Le rôle du droit savant dans quelques actes judicaires italiens des xie et xiie siècles," in Confluence des droits savants et des pratiques juridiques. Actes du colloque de Montpellier tenu du 12 au 14 décembre 1977 (Milan, 1979), 343–71; Giovanna Nicolaj, Cultura e prassi di notai preirneriani. Alle origini del rinascimento giuridico, Ius Nostrum. Studi e testi pubb. dall'Istituto di Storia di Diritto Italiano dell'Università di Roma, 19 (Milan: Giuffre, 1991). 6. Peter Classen, Recht und Schrift im Mittelalter (Sigmaringen: Thorbecke, 1977).

Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.